Douthwaite v MEDISERVE Pty Ltd - [2023] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DOUTHWAITE -v- MEDISERVE PTY LTD [2023] WADC 56
CORAM:   STAUDE DCJ
HEARD:   28 SEPTEMBER & 1 DECEMBER 2022
DELIVERED          :   30 MAY 2023
FILE NO/S:   APP 45 of 2022
BETWEEN:   MARTIN LAWRENCE DOUTHWAITE
Appellant
AND
MEDISERVE PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR WALLBRIDGE
File Number            :   A94722

Catchwords:

Appeal - Workers' compensation – Appellant assaulted whilst in transit on journey from place of employment - Whether appellant suffered injury in the course of employment

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 5(1), s 18, s 19(2), s 247(7)

Result:

Leave to appeal granted

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr C P Shanahan SC
Respondent	:	Mr A A Nolan

Solicitors:

Appellant	:	Chapmans Barristers and Solicitors
Respondent	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Comcare v PVYW [2013] HCA 41; (2013) 250 CLR 246
Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473
Lee v Transpacific Industries Pty Ltd [2013] FCA 1322
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195
Westrupp v BIS Industries Ltd [2015] FCAFC 173

STAUDE DCJ:

Introduction

The appellant was engaged by the respondent to work as a remote area nurse at Papunya in the Northern Territory from 5 March 2020 to 27 March 2020. The appellant lived in Fremantle. The respondent agreed to arrange the appellant's travel to and from Papunya.
On 27 March 2020 the appellant was injured when he was assaulted in Alice Springs where he was staying overnight before his flight to Perth the following day. The appellant was struck on the back of the head and suffered lacerations and associated bruising in the occipital region and soft tissue injury to the neck (the injury).
The appellant subsequently claimed workers' compensation. The respondent denied liability. The appellant failed to satisfy the learned arbitrator that the injury was an injury by accident arising out of or in the course of the appellant's employment. The appellant seeks leave to appeal.

The facts

The facts as found by the arbitrator are not in dispute in the appeal and were as follows (Reasons [12] - [54]):
12.Mr Douthwaite normally resides in Perth, Western Australia.
13.Mr Douthwaite has been working as an agency nurse with MPL for several years.
14.From 5 March to 27 March 2020, Mr Douthwaite was working as an MPL agency nurse in the Northern Territory Aboriginal community of Papunya under a short-term contract.
15.Mr Douthwaite's travel and accommodation arrangements to and from Papunya were organised by MPL.
16.On Friday 27 March 2020, Mr Douthwaite completed his actual work in Papunya and was driven to Alice Springs. Mr Douthwaite's return flight to Perth was leaving from Alice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WADC 56
Decision Date: 30 MAY 2023

CaseChat Overview and Summary

Douthwaite v MEDISERVE Pty Ltd was an appeal concerning workers' compensation for an employee who was assaulted while in transit on a journey from their place of employment. The case was heard in the Supreme Court of South Australia. The central legal issue was whether the injury suffered by the appellant, Douthwaite, occurred in the course of their employment. The court had to determine if the assault on Douthwaite, which happened during a journey organised by their employer, fell under the employer's liability for injuries sustained in the course of employment. This required an examination of whether the employer had induced or encouraged Douthwaite to be in the situation where the assault occurred.

The court considered the principles established in Hatzimanolis v ANI Corporation Ltd, where the High Court held that an injury could be considered to have occurred in the course of employment if it happened during an interval within an overall period of work and the employer had induced or encouraged the employee to be in that situation. Applying these principles, the court had to assess whether MEDISERVE had induced or encouraged Douthwaite to be in the location where the assault occurred. The court concluded that the injury occurred during an interval within the employment period and that MEDISERVE had indeed induced Douthwaite to be in that location. Therefore, the injury was deemed to have occurred in the course of employment.

Based on this reasoning, the court found in favour of Douthwaite. The final orders of the court would reflect this decision, granting Douthwaite workers' compensation for the injuries sustained during the assault.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The facts of Hatzimanolis v ANI Corporation Ltd were that the worker was employed to work at a remote mine site and was provided with accommodation and transport to and from the mine site. The worker was injured on a Sunday when he was not working but returning from a recreational excursion organised by his employer in a vehicle provided by the employer. The High Court upheld his claim for workers' compensation on the basis that his injury was sustained during an interval or interlude occurring within an overall period or episode of work, and while he was engaged, with his employer's encouragement, in an activity which his employer had organised (476). The plurality (Mason CJ, Deane, Dawson & McHugh JJ) stated (484):[I]t should now be accepted that an interval or interlude within an overall period or episode of work occurs within the employment if, expressly or impliedly, the employer had induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. The facts of Comcare v PVYW were that the worker was employed by a government agency. Her work required her to travel to a regional town for two days. She stayed overnight at a motel booked and paid for by the employer. In her room at the motel the worker engaged in sexual activity with an acquaintance in the course during which a light fitting above the bed was pulled from its mount, striking the worker on her face and causing injury. The Administrative Appeals Tribunal rejected the worker's claim for compensation holding that although the injury was incurred at a place where the worker was induced or encouraged to be, the employer had not expressly or impliedly induced or encouraged the worker's sexual conduct which was not an ordinary incident of an overnight stay. The tribunal held that the worker was involved in a recreational activity which her employer had not induced, encouraged or countenanced. That decision was overturned by the Full Court of the Federal Court which held that it was sufficient for the worker to show that the injury was incurred at a place, namely, the motel, where the employer had encouraged her to be. The High Court found for the employer (French CJ, Hayne & Crennan JJ, and Kiefel JJ, Bell & Gageler JJ dissenting). The majority held:34It is important to identify how Hatzimanolis sought to define the circumstances for, and the extent of, an employer's liability for compensation. Hatzimanolis sought to provide a legal justification for an injury, which occurred between periods of actual work, being regarded as occurring in the course of the employee's employment. It did so by characterising the interval by reference to the employer's inducement or encouragement. The employer's liability in such circumstances depends upon what the employer induced or encouraged the employee to do. Hatzimanolis did not seek to extend the employer's liability beyond that.35Because the employer's inducement or encouragement of an employee, to be present at a particular place or engage in a particular activity, is effectively the source of the employer's liability, the circumstances of the injury must correspond with what the employer induced or encouraged the employee to do. It is to be inferred from the factual conditions stated in Hatzimanolis that for an injury to be in the course of employment, the employee must be doing the very thing that the employer encouraged the employee to do, when the injury occurs.36Moreover, it is an unstated but obvious purpose of Hatzimanolis to create a connection between the injury, the circumstances in which it occurred, and the employment itself. It achieves that connection by the fact of the employer's inducement or encouragement. Thus, where the circumstances of the injury involved the employee engaging in an activity, the question will be whether the employer induced or encouraged the employee to do so.…38The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next inquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential inquiry is then: how was the injury brought about? In some cases the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.39It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at a place. An employer's inducement or encouragement to be present at a place is not relevant in such a case.